the contention in suit was that your grand father had taken loan from his friend . in application for amendment it is mentioned that loan was given to your grand father by friend son . application for amendement is allowed by court on payment of costs . you have not mentioned whether issues have been framed or not . court will disallow application for amendment if it changes nature of the suit
It is settled proposition of law that an amendment
should generally be allowed, unless it is shown that
permitting the amendment would be unjust and would
result in prejudice to the opposite party which cannot be
compensated by cost or would deprive him of a right which
has accrued to him with the lapse of time. Errors or CS(OS)No.565/2008 Page 5 of 11
mistakes, if not fraudulent, should not be made a ground
for rejecting the application for amendment of plaint or
Written Statement. If there is no undue delay, no
inconsistent cause of action is introduced and no vested
interest or accrued legal right is affected and the application
for amendment is not mala fide or will not prejudice the
opposite party, the amendment should ordinarily be
allowed.
8. In Rajkumar Gurawara (Dead) through LRs. Vs.
S.K. Sarwagi and Co. Pvt. Ltd. and Anr. AIR 2008 SCC
2303, Supreme Court, referring to the aforesaid proviso to
Rule 17 of Order VI, inter alia, observed as under:-
“The said rule with proviso again
substituted by Act 22 of 2002 with effect
from 01.07.2002 makes it clear that after
the commencement of the trial, no
application for amendment shall be
allowed. However, if the parties to the
proceedings able to satisfy the court that
in spite of due diligence could not raise
the issue before the commencement of
trial and the court satisfies their
explanation, amendment can be allowed
even after commencement of the trial. To
put it clear, Order VI Rule 17 C.P.C.
confers jurisdiction on the Court to allow
either party to alter or amend his
pleadings at any stage of the proceedings CS(OS)No.565/2008 Page 6 of 11
on such terms as may be just. Such
amendments seeking determination of
the real question of the controversy
between the parties shall be permitted to
be made. Pre-trial amendments are to be
allowed liberally than those which are
sought to be made after the
commencement of the trial. As rightly
pointed out by the High Court in the
former case, the opposite party is not
prejudiced because he will have an
opportunity of meeting the amendment
sought to be made. In the latter case,
namely, after the commencement of trial,
particularly, after completion of the
evidence, the question of prejudice to the
opposite party may arise and in such
event, it is incumbent on the part of the
Court to satisfy the conditions prescribed
in the proviso.”
